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date: 11 May 2021

Abstract and Keywords

The state scrutinizes potential parents with some rigor in the context of adoption, and with good reason. There is no justification for not doing so as well in choosing a newborn child’s first legal parents. This chapter describes nascent efforts to identify unfit biological parents at the time of birth, before they assume custody and subject a child to maltreatment—specifically, toxicology testing of newborns and examination of birth parents’ child-maltreatment history. The chapter then provides a theoretical normative argument for further developing such efforts. It analogizes state creation of legal parent-child relationships to state creation of legal family relationships between adults (i.e., marriage). It explains that parentage law can and should imitate marriage law in one crucial respect—namely, requiring a mutuality of consent between the two parties, with the state serving as an agent for the child in consenting to (or rejecting) a family relationship with particular adults based on its best judgment as to whether forming a legal family with those adults is in the child’s best interests all things considered.

Keywords: toxicology testing, Birth Match, parentage, maltreatment history, unfit parents

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